This morning the Supreme Court of Canada released its decision in the matter of Communications, Energy and Paper Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. The decision is important in that it comments on the standard of review in a judicial review of an arbitration decision, and more important in that it does so in the context of an employer’s exercise of its management rights to implement a random alcohol testing program for workers employed in safety sensitive positions.
The ruling is a split decision of a full panel of all nine judges of the SCC. The majority decision, written by Madame Justice Abella, concluded that the decision of the arbitrator in striking down the employer’s random alcohol testing program was reasonable. As a result, the SCC allowed the appeal from the New Brunswick Court of Appeal. The minority of three judges found the arbitration board’s decision to be unreasonable and concluded. Most importantly, the minority found that the board appeared to apply a higher evidentiary standard to which the employer needed to demonstrate alcohol problems in the workplace. That standard, the minority found, was not supported by the body of arbitral jurisprudence and therefore the arbitrator’s decision was unreasonable.
Irving Pulp & Paper sought to implement a random alcohol testing program for its workers who were employed in safety sensitive work. The program would randomly select 10% of this workforce for testing on an annual basis. The program was established by the employer unilaterally. It was not a program established through collective bargaining. As a result, the employer relied upon the management rights clause of its collective agreement in order to establish and implement the program. A failure during testing could result in the discipline and possible dismissal of a worker.
The union challenged the program through a grievance. The board struck down the employer’s policy. In so doing, the board concluded that a balance between safety and privacy was necessary in the workplace. In order to justify the program, the employer was expected to demonstrate that there were “enhanced” safety risks and that there was a significant or serious problem of alcohol abuse in the workplace. The board found that the employer had failed to establish either of these elements and therefore the invasion of employee privacy resulting from the implementation of the random alcohol testing was not justified.
The board’s decision was overturned on judicial review on the basis that the decision was unreasonable. That decision was confirmed by the New Brunswick Court of Appeal.
The majority of the SCC focused on the reasonableness of the board’s decision. In assessing that reasonableness, the majority accorded the arbitration board a high degree of deference. They agreed that the employer had failed not only to demonstrate the significance of alcohol use as a problem in the workplace, but that the employer had failed to demonstrate that there was a meaningful safety risk associated with such use.
The minority, in its dissenting judgment, concluded that the board’s decision was not reasonable. It found that the standard of evidence expected of the employer was not consistent with that in the arbitral jurisprudence. That is, it was not necessary for the employer to demonstrate a “serious” and “significant” alcohol abuse problem in the workplace, but merely to demonstrate that there was “a” problem. The minority also attacked the reasoning of the board that required that the evidence of alcohol use should be casually linked to an accident, injury or near miss incident in the workplace. The minority indicated that it was unreasonable for an employer to have to wait for such an incident before taking steps to ensure safety, and concluded that this part of the board’s decision was “patently absurd”.
Analysis and Guidance for Employers
The decision may trouble many employers who maintain workplaces were safety risks are abundant and the need for workers to attend at work and perform safety-sensitive work in a non-impaired manner is critical. Taken at its highest, the majority decision appears to adopt the reasoning of the arbitration board that an employer must demonstrate evidence of significant or serious alcohol problems in the workplace and then also demonstrate that alcohol use must be causally linked to an enhanced safety risk.
However, the decision can be seen as an acknowledgement that the decision of the board, though it might deviate from the body of arbitral jurisprudence (as suggested by the minority decision) still falls within a reasonable range of outcomes from which an arbitrator could have ruled. In other words, it is not merely open to the Court to substitute its own view on the evidence when the decision of an arbitrator (while not necessarily being the same decision the Court might have made) is nevertheless “reasonable”.
The minority, it appears, focused more on the need to ensure safety in a dangerous workplace. Its challenge to the board’s deviation from the evidentiary standard established in the arbitral jurisprudence suggests that another board who may have agreed with the minority’s view of the case could also have been seen to have made a “reasonable” decision. It is therefore difficult to assert with a high degree of confidence that a further arbitration decision would necessary follow the line of reasoning in the original decision in this case.
For employers who wish to establish mandatory random drug and alcohol testing for workers in safety sensitive positions, it would be wise to approach this issue in a manner that would survive the highest level of scrutiny. In particular, an employer should consider the following:
Adoption of a drug and alcohol testing program that is developed with the involvement and endorsement of the union.
Establishing detailed evidence about the safety-sensitive nature of the workplace, generally, and specific jobs within that workplace specifically. As part of this review, the employer should be able to demonstrate the likely effect of a drug or alcohol impairment on the ability to safety perform work in each position that is targeted by the testing program.
Establishing detailed evidence about the “problem” of alcohol and drug use in the workplace. To the extent that there is evidence linking such use to safety incidents, that evidence should be clearly established and relied upon in the development of a policy.
The cost of developing and implementing effective drug and alcohol testing programs is significant. It is important that employers carefully construct the programs so as to withstand a challenge such as in Irving Pulp & Paper. Programs and policies that are already in place should be scrutinized to ensure that they meet the standard supported by the SCC in this decision.
The CCP team has considerable experience drafting and reviewing such policies, in assessing safety risks and balancing safety and privacy considerations in the crafting of a policy, and on advising employers regarding appropriate discipline in the event of failed test. Consider consulting a CCP lawyer prior to developing such a policy or program, or in reviewing the programs that you currently have in place.
- Rob Boswell
For more information and legal insight or advice, visit www.ccpartners.ca.